A Corrective Justice Account of Disgorgement for Breach of Contract by Analogy to Fiduciary Remedies

2016 ◽  
Vol 29 (1) ◽  
pp. 149-190
Author(s):  
Anthony Robert Sangiuliano
Keyword(s):  
Attorney General ◽  
Fiduciary Duty ◽  
Third Party ◽  
Corrective Justice ◽  
Alternative Account ◽  
Breach Of Contract ◽  
House Of Lords ◽  
The Uk ◽  
Contractual Rights ◽  
Do So

A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords inAttorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.

RESTITUTIONARY DAMAGES TO DETER BREACH OF CONTRACT

2001 ◽  
Vol 60 (1) ◽  
pp. 1-58 ◽  
Author(s):  
David Fox
Keyword(s):  
Attorney General ◽  
Monetary Incentive ◽  
Breach Of Contract ◽  
House Of Lords ◽  
Contractual Rights

“THE essence of contract is performance”. So argued Professor Daniel Friedmann in discussing the rationale of remedies for breach of contract ((1995) 111 L.Q.R. 628, 629). The House of Lords’ decision in Attorney-General v. Blake [2000] 3 W.L.R. 625 lends new support to this view. It holds that a claimant’s interest in performance of his contractual rights may, exceptionally, entitle him to recover restitutionary damages from the defaulting party. Measured by the defendant’s gain from the breach, rather than the claimant’s expectation or reliance loss, restitutionary damages transfer to the claimant the profit that the defendant makes by his wrong. Failing any other adequate remedy for the claimant, liability to restitutionary damages encourages the defendant to perform his duty by depriving him of the monetary incentive to commit a breach.

the other parties to a related contract. As will be seen below, some of these relationships, although not all, will be covered by the provisions of the Contracts (Rights of Third Parties) Act 1999 and may, more easily be regarded as giving rise to enforceable contractual rights in favour of a third party. In Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd, Dew & Co, a firm of motor factors agreed to distribute Dunlop tyres. Part of the agreement was that Dew would adhere to a price maintenance structure set out by Dunlop and that Dew would require any subsequent purchaser from them of Dunlop tyres also to adhere to that price maintenance structure. Dew sold Dunlop tyres to Selfridge, who then proposed to sell those tyres at a price lower than had been stipulated by Dunlop. The contract between Dew and Selfridge provided that Selfridge would adhere to Dunlop’s minimum prices and the question arose whether Dunlop could enforce the relevant term in their favour, despite the fact that they were not parties to the contract which contained the relevant term. The House of Lords held that as no consideration moved from Dunlop to Selfridge, the contract was unenforceable by Dunlop against Selfridge: Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, HL, p 853

1995 ◽  
pp. 753-755
Keyword(s):  
Third Parties ◽  
The Other ◽  
Third Party ◽  
House Of Lords ◽  
Relevant Term ◽  
Contractual Rights ◽  
Price Maintenance

Lionel Cohen Lecture: The Content of Fiduciary Obligation

2000 ◽  
Vol 34 (1) ◽  
pp. 3-38 ◽  
Author(s):  
Peter Birks
Keyword(s):  
Fiduciary Duty ◽  
Clear Picture ◽  
Breach Of Contract ◽  
The Third ◽  
The Core ◽  
Fiduciary Obligations ◽  
Do So

Fiduciary obligations form a sub-set of those primary obligations the breach of which constitutes a civil wrong. Only by starting from the obligation of the express trustee can one establish a clear picture of their content. ‘Fiduciary’ is one vehicle for exporting incidents of the express trust by analogy. The trustee's obligation differs from other primary obligations in the degree of altruism which it requires. The trustee must not only take care of the interests of another but must do so disinterestedly. This is the third and highest degree of legally obligatory altruism. The question then arises whether the trustee's obligation mutates when imposed on non-trustees. The core obligation never changes. A sub-problem then emerges: Can negligence be a breach of any one of three different primary duties and hence three different wrongs: breach of contract, tort, and breach of fiduciary duty? The last section of the lecture looks for the best way to dispel that illusion.

Disgorgement of Profits for Breach of Contract: A Comparative Analysis

2003 ◽  
Vol 7 (1) ◽  
pp. 27-59 ◽  
Author(s):  
Mathias Siems
Keyword(s):  
Common Law ◽  
Attorney General ◽  
German Law ◽  
Legal Systems ◽  
Breach Of Contract ◽  
House Of Lords ◽  
Similarities And Differences ◽  
Compensatory Damages ◽  
Unjustified Enrichment ◽  
Legal Concepts

This article considers whether a contract-breaker is obliged not only to pay compensatory damages but also to disgorge to the innocent party the profits obtained from breach of contract. After an introduction to the topic, the approach of the courts in Common Law jurisdictions will be outlined. The main focus will be on English Law and the decision of the House of Lords in Attorney General v Blake, althoughjudgmentsfrom other countries will also be mentioned. Thereafter thefocus will be upon Germany as an example ofa Civil Lawjurisdiction. The German law of contract, negotiorum gestio and unjustified enrichment will be examined as to their ability to award disgorgement. The mixed legal systems of Israel, Louisiana and Scotland will also be studied. The similarities and differences between the different legal systems will then be compared and interpreted. In particular, the article will consider common starting points, exceptions and new legal concepts, as well as differences injudicial decision-making and in thefreedom to draft contractual terms. Finally, it will be contended that disgorgement ofthe benefits resultingfrom a breach ofcontract should in principle be awarded. Moreover, this should not be restricted to certain cases. It is necessary only that the gains should be attributable to breach of contract.

Which presumption? A critique of the House of Lords' reasoning on retrospectivity and the Human Rights Act

Legal Studies ◽  
2002 ◽  
Vol 22 (2) ◽  
pp. 185-207 ◽  
Author(s):  
Deryck Beyleveld ◽  
Richard Kirkham ◽  
David Townend
Keyword(s):  
Human Rights ◽  
Literal Meaning ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk ◽  
Do So

In this article we argue that the House of Lords recently erred severely by failing to apply the Human Rights Act 1998 retrospectively, and that the appropriate remedy is to deploy the 1966 ‘Practice Statement’. We describe how the House has made a number of basic mistakes in interpreting the literal meaning of the Act. These errors are partly explained by the court's reliance upon a general presumption that law should not be applied retrospectively. We argue that human rights legislation is a necessary exception to this rule. We maintain this for philosophical reasons, but also contend that s 3(1) of the Human Rights Act reverses the presumption against retrospectivity and requires a new presumption that human rights should be given effect whenever it is possible to do so. This is a vital issue because s 3(1) is one of the most important provisions in the UK constitution.

Negotiating Damages after One Step: Employment Team Move and Misuse of Confidential Information Cases

2020 ◽  
Vol 24 (3) ◽  
pp. 363-388
Author(s):  
Philippe Kuhn
Keyword(s):  
Fiduciary Duty ◽  
Confidential Information ◽  
Breach Of Contract ◽  
Injunctive Relief ◽  
One Step

This article addresses monetary remedies in employment team move and misuse of confidential information cases. It argues that, after the Supreme Court's decision in One Step (Support) Ltd v Morris-Garner, negotiating (previously Wrotham Park) damages offer a useful additional compensatory tool in misuse of confidential information cases. They can help overcome some of the difficulties with ordinary contractual damages, equitable remedies for breach of fiduciary duty and confidence and limitations in injunctive relief. While One Step is restrictive overall, there is a real role for negotiating damages in employment cases where misuse of confidential information is the sole or predominant breach of contract. The well-established Faccenda approach is suggested for identifying the requisite confidential information.

THE ALLIED NEUTRAL? PORTUGUESE BALANCE OF PAYMENTS WITH THE UK AND GERMANY IN THE SECOND WORLD WAR, 1939-1945

2020 ◽  
Vol 38 (1) ◽  
pp. 79-110
Author(s):  
Eric Golson
Keyword(s):  
Raw Materials ◽  
Second World War ◽  
Balance Of Payments ◽  
International Standards ◽  
Third Party ◽  
World War ◽  
Portuguese Empire ◽  
Active Choice ◽  
The Uk ◽  
Second World

ABSTRACTIn September 1939, Portugal made a realist strategic choice to preserve the Portuguese Empire maintaining by its neutrality and also remaining an ally of Great Britain. While the Portuguese could rely largely on their colonies for raw materials to sustain the mainland, the country had long depended on British transportation for these goods and the Portuguese military. With the British priority now given to war transportation, Portugal's economy and Empire were particularly vulnerable. The Portuguese dictator Antonio Salazar sought to mitigate this damage by maintaining particularly friendly financial relations with the British government, including increased exports of Portuguese merchandise and services and permission to accumulate credits in Sterling to cover deficits in the balance of payments. This paper gives an improved set of comprehensive statistics for the Anglo-Portuguese and German–Portuguese relationships, reported in Pounds and according to international standards. The reported statistics include the trade in merchandise, services, capital flows, loans and third-party transfers of funds in favour of the British account. When compared with the German statistics, the Anglo-Portuguese figures show the Portuguese government favoured the British in financial relations, an active choice by Salazar to maintain the Portuguese Empire.

scholarly journals A Case Study of a Negotiated Tender within a Small-to-Medium Construction Contractor: Modelling Project Cost Variance

Buildings ◽  
2021 ◽  
Vol 11 (6) ◽  
pp. 260
Author(s):  
James Ellis ◽  
David John Edwards ◽  
Wellington Didibhuku Thwala ◽  
Obuks Ejohwomu ◽  
Ernest Effah Ameyaw ◽  
...  
Keyword(s):  
Construction Industry ◽  
Study Data ◽  
Review Literature ◽  
Third Party ◽  
Open Book ◽  
Competitive Tendering ◽  
Construction Contractor ◽  
The Uk ◽  
Insight Into

This research explores the failure of competitively tendered projects in the UK construction industry to procure the most suited contractor(s) to conduct the works. Such work may have equal relevance for other developed nations globally. This research seeks to teach clients and their representatives that “lowest price” does not mean “best value”, by presenting a case study of a successfully negotiated tender undertaken by a small-to-medium enterprise (SME) contractor; SME studies are relatively scant in academic literature. By applying the “lessons learnt” principle, this study seeks to improve future practice through the development of a novel alternative procurement option (i.e., negotiation). A mixed philosophical stance combining interpretivism and pragmatism was used—interpretivism to critically review literature in order to form the basis of inductive research to discuss negotiation as a viable procurement route, and pragmatism to analyse perceptions of tendering and procurement. The methods used follow a three-stage waterfall process including: (1) literature review and pilot study; (2) quantitative analysis of case study data; and (3) qualitative data collection via a focus group. Our research underscores the need to advise clients and their representatives of the importance of understanding the scope of works allowed within a tender submission before discounting it based solely on price. In addition, we highlight the failings of competitive tendering, which results in increased costs and project duration once the works commence on site. These findings provide new contemporary insight into procurement and tendering in the construction industry, with emphasis on SME contractors, existing relationships, and open-book negotiation. This research illustrates the adverse effects of early cost estimates produced without first securing a true understanding of project buildability and programming. Our work concludes with a novel insight into an alternative procurement option that involves early SME contractor involvement in an open-book environment, without the need for a third-party cost control.

Privity: Rights, Standing, and the Road Not Taken

2021 ◽  
Author(s):  
Timothy Liau
Keyword(s):  
Third Party ◽  
The Road ◽  
Distinct Concept ◽  
Contractual Rights ◽  
Opening Up

Abstract Privity is generally understood as a rule comprising a burdens limb and a more controversial benefits or ‘rights’ limb. This rendition of privity is too simplistic. Privity has multiple aspects, but its underlying complexity has been obscured by an overwhelming focus on ‘rights’, explaining in part the persistent unclarity plaguing the area. In this article, I argue that an elision of concepts has hampered our understanding of privity and its reform. The literature on contractual rights to performance and secondary rights to damages for their breach is legion. By contrast, standing, as a separate and distinct concept, has been overlooked. These are concepts that need to be more clearly differentiated. While not a panacea to resolve all issues, it is a necessary step to a firmer handle over the distinct issues at stake, and to opening up a novel angle to privity reform—third-party standing—the road not taken.

Sign in / Sign up

Export Citation Format

Share Document